City & Cnty. of S.F. v. U.S. Citizenship & Immigration Servs.

• Decision Date: 05 December 2019
• Docket Number: No. 19-35914,No. 19-17213, No. 19-17214,19-17213
• Citation: 944 F.3d 773
• Parties: CITY AND COUNTY OF SAN FRANCISCO; County of Santa Clara, Plaintiffs-Appellees, v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; U.S. Department of Homeland Security, a federal agency; Chad F. Wolf, in his official capacity as Acting Secretary of the United States Department of Homeland Security; Kenneth T. Cuccinelli, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants. State of California; District of Columbia; State of Maine; Commonwealth of Pennsylvania; State of Oregon, Plaintiffs-Appellees, v. U.S. Department of Homeland Security, a federal agency; United States Citizenship and Immigration Services, a federal agency; Chad F. Wolf, in his official capacity as Acting Secretary of the United States Department of Homeland Security; Kenneth T. Cuccinelli, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants. State of Washington; Commonwealth of Virginia; State of Colorado; State of Delaware; State of Illinois; State of Maryland; Commonwealth of Massachusetts; Dana Nessel, Attorney General on behalf of the People of Michigan; State of Minnesota; State of Nevada; State of New Jersey; State of New Mexico; State of Rhode Island; State of Hawai‘i, Plaintiffs-Appellees, v. U.S. Department of Homeland Security, a federal agency; Chad F. Wolf, in his official capacity as Acting Secretary of the United States Department of Homeland Security; United States Citizenship and Immigration Services, a federal agency; Kenneth T. Cuccinelli, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

944 F.3d 773

CITY AND COUNTY OF SAN FRANCISCO; County of Santa Clara, Plaintiffs-Appellees,

v.UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES, a federal agency; U.S. Department of Homeland Security, a federal agency; Chad F. Wolf, in his official capacity as Acting Secretary of the United States Department of Homeland Security; Kenneth T. Cuccinelli, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants.

State of California; District of Columbia; State of Maine; Commonwealth of Pennsylvania; State of Oregon, Plaintiffs-Appellees,

v.U.S. Department of Homeland Security, a federal agency; United States Citizenship and Immigration Services, a federal agency; Chad F. Wolf, in his official capacity as Acting Secretary of the United States Department of Homeland Security; Kenneth T. Cuccinelli, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants.

State of Washington; Commonwealth of Virginia; State of Colorado; State of Delaware; State of Illinois; State of Maryland; Commonwealth of Massachusetts; Dana Nessel, Attorney General on behalf of the People of Michigan; State of Minnesota; State of Nevada; State of New Jersey; State of New Mexico; State of Rhode Island; State of Hawai‘i, Plaintiffs-Appellees,

v.U.S. Department of Homeland Security, a federal agency; Chad F. Wolf, in his official capacity as Acting Secretary of the United States Department of Homeland Security; United States Citizenship and Immigration Services, a federal agency; Kenneth T. Cuccinelli, in his official capacity as Acting Director of United States Citizenship and Immigration Services, Defendants-Appellants.

No. 19-17213

No. 19-17214

No. 19-35914

United States Court of Appeals, Ninth Circuit.

Filed December 5, 2019

ORDER

BYBEE, Circuit Judge:

Since 1882, when the Congress enacted the first comprehensive immigration statute, U.S. law has prohibited the admission to the United States of "any person unable to take care of himself or herself without becoming a public charge." Act of Aug. 3, 1882, ch. 376, § 2, 22 Stat. 214 (1882). Although the precise formulation of this provision has been amended regularly in the succeeding century and a quarter, the basic prohibition and the phrase "public charge" remains. Most recently, in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress amended the Immigration and Nationality Act (INA) to provide that "[a]ny alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible." 8 U.S.C. § 1182(a)(4)(A). In making this determination, "the consular officer or the Attorney General shall at a minimum" take five factors into account: age; health; family status; assets, resources, and financial status; and education and skills. Id. § 1182(a)(4)(B)(i). Under long-standing practice, consular officers and the Attorney General consider these factors under a "totality of the circumstances" test.

In 1999, the Immigration and Naturalization Service (INS), providing guidance to the public and INS field officers, defined "public charge" as an "alien ... who is likely to become ... primarily dependent on the government for subsistence" as demonstrated by either "institutionalization for long-term care at government expense" or "receipt of public cash assistance for income maintenance."

Field Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 Fed. Reg. 28,689, 28,689 (May 26, 1999) (1999 Field Guidance ) (internal quotation marks omitted). Although INS determined that the receipt of cash benefits received under a public program would be considered a factor in determining whether an alien was likely to become a public charge, it stated that non-cash benefits would not be taken into account for public-charge purposes. Id.

In August 2019, following notice and comment, the Department of Homeland Security adopted a new rule, redefining the term "public charge" to require a consideration of not only cash benefits, but also certain non-cash benefits. Inadmissibility on Public Charge Grounds, 84 Fed. Reg. 41,292, 41,292 (Aug. 14, 2019) (Final Rule). Under DHS’s Final Rule a public charge is "an alien who receives one or more public benefits ... for more than 12 months in the aggregate within any 36-month period." Id. at 41,501. In turn, DHS defined "public benefits." Consistent with the 1999 Field Guidance , DHS still considers receipt of cash assistance from Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF); and federal, state, or local general assistance programs to be public benefits. To that list, DHS added non-cash assistance received through the Supplemental Nutrition Assistance Program (SNAP), Section 8 housing assistance, Section 8 project-based rental assistance, Medicaid (with certain exceptions), and Section 9 public housing. Id. DHS’s rule exempts public benefits received for emergency medical conditions, benefits received under the Individuals with Disabilities Education Act, and school-based services or benefits. Id. It also exempts those benefits received by aliens under 21 years of age, women during pregnancy, and members of the armed forces and their families. Id. DHS repeated that "[t]he determination of an alien’s likelihood of becoming a public charge at any time in the future must be based on the totality of the alien’s circumstances." Id . at 41,502.

Prior to the Final Rule taking effect in October 2019, various states, municipalities, and organizations brought suits in California and Washington seeking a preliminary injunction against the implementation of the rule. In Nos. 19-17213 and 19-17214, California, Maine, Oregon, Pennsylvania, and the District of Columbia; the City and County of San Francisco and the County of Santa Clara; and various organizations brought suit in the Northern District of California against the United States under the Due Process Clause of the Fifth Amendment; the Administrative Procedure Act (APA), 5 U.S.C. § 706 ; and the Declaratory Judgment Act, 28 U.S.C. §§ 2201 – 02. The district court granted a preliminary injunction on the basis of the APA, effective against implementation of the rule in the plaintiff states. City & Cty. of San Francisco v. U.S. Citizenship & Immigration Servs. , 408 F.Supp.3d 1057, 2019 WL 5100718 (N.D. Cal. Oct. 11, 2019). In No. 19-35914, thirteen states—Washington, Virginia, Colorado, Delaware, Hawai‘i, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, and Rhode Island—filed suit in the Eastern District of Washington against DHS under the Due Process Clause of the Fifth Amendment and the APA. The district court granted a preliminary injunction on the basis of the APA claims and issued a nationwide injunction. Washington v. U.S. Dep’t of Homeland Sec. , 408 F.Supp.3d 1191, 2019 WL 5100717 (E.D. Wash. Oct. 11, 2019).

DHS seeks a stay of both preliminary injunctions.¹ Our authority to issue a stay of a preliminary injunction is circumscribed. Nevertheless, for the reasons explained below, we will grant the stay. DHS has shown a strong likelihood of success on the merits, that it will suffer irreparable harm, and that the balance of the equities and public interest favor a stay. See Nken v. Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).

I. BACKGROUND AND PROCEDURE

We begin with the governing statutory framework, the proposed change to this framework, and the proceedings below.

A. Statutory Framework

The INA requires all aliens who seek lawful admission to the United States, or those already present but seeking to become lawful permanent residents (LPRs), to prove that they are "not inadmissible." 8 U.S.C. § 1361 ; see also id. §§ 1225(a), 1255(a). Section 212 of the INA lists the grounds on which an alien may be adjudged inadmissible. Id . § 1182(a)(1)–(10). One of the grounds for inadmissibility is a determination that the alien is likely to become a "public charge." Id . § 1182(a)(4). Section 212(a)(4) of the INA reads as follows:

(4) PUBLIC CHARGE. —

(A) IN GENERAL.—Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible.

(B) FACTORS TO BE TAKEN INTO ACCOUNT.—

(i) In determining whether an alien is inadmissible under this paragraph, the consular officer or the Attorney General^[2] shall at a minimum consider the alien’s—

(I) age;

(II) health;

(III) family status;

(IV) assets, resources, and financial status; and

(V) education and skills.

(ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support^[3] under section 1183a of this title for purposes of exclusion under this paragraph.

Id .

This provision is applied at different times by different government agencies. When an alien seeks a visa to travel to the United States, a Department of State (DOS) consular officer must make an admissibility determination. See 84 Fed. Reg. at 41,294 n.3. When an alien arrives at a port of entry without a visa, DHS makes that determination. Id . An alien may also be deemed "inadmissible" even when the alien is already in the country. For example, when an alien seeks an adjustment of status from non-immigrant to LPR, DHS must determine that the alien is not inadmissible. See id . And when an alien is processed in immigration court, the Department of Justice (DOJ) through immigration judges and the Board of Immigration Appeals (BIA) must determine whether that alien is inadmissible. Id .

Though § 212 of the INA lays out the factors an...